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Same-sex marriage case could still be won

A court case for same-sex marriage could still be won regardless of “regressive” amendments that were passed by MPs on Friday night, according to lawyer Tim Marshall.

Mr Marshall also argued that politicians had abused their powers by attacking the human rights of an historically oppressed minority group by approving the Bill from Progressive Labour Party MP Wayne Furbert.

Mr Furbert's legislation, aimed at strengthening marriage between a man and a woman, is due for debate in the Senate on Thursday.

It states that the Human Rights Act cannot override the provisions of the Matrimonial Causes Act, which provides that marriages are void unless they are between a man and a woman.

Mr Marshall, a human rights lawyer, said the amendments offend the Constitution because they are grounded in religion — although Attorney-General Trevor Moniz believes the Bill poses no Constitutional problems. Mr Marshall told The Royal Gazette: “There is a very strong argument that the type of legislation that Government passed in the House on Friday offends the Freedom of Conscience and Religion provision of the Constitution because it is imposing a law that is quite clearly based on a religious view.

“If the Supreme Court saw merit in that argument it could strike down the amendment to the Human Rights Act, and you can call it a regressive amendment, and strike out any attempt to prevent same-sex couples from getting married.

“This is probably the main constitutional protection that can be advanced.”

Lawyer Mark Pettingill, an OBA MP who voted against the Bill, has said that despite the vote he would pursue his case on behalf of a gay couple seeking to marry on the island.

Mr Marshall added that Bermuda's Parliament “misused its powers” by diminishing the Human Rights Act.

“This marks Parliament's first counterattack against the advancement of human rights and the dignity of a historically oppressed minority group, the gay community,” he said.

“Parliament imposed a dominant and restrictive religious view of morality on the people of Bermuda on Friday evening and to accomplish that they misused their power and cut down the Human Rights Act.

“I would like to believe that the Supreme Court will give effect to our Constitution and strike down the imposition of any law that imposes a particular religious order upon our society.”

Mr Moniz, who made amendments to Mr Furbert's Bill before voting against it on Friday, said: “The Bill that has passed represents no constitutional difficulty.

“To the best of my knowledge there would be no reason for the Governor not to give the assent. Others are entitled to the view. Either you are suggesting it is contrary to our Constitution or it is not and it is not my belief that it is. I don't think we need to go any further than that. I don't see the UK government getting involved in this issue.

“We come under the European Convention and the most recent cases from the European Courts of Justice have not given any legal right to same-sex marriage there are other rights for same-sex couples but not marriage. There is no breach of the convention or our constitution. That is my legal opinion.”

On Friday night, the Bill won by 20 votes to ten, with backing of eight One Bermuda Alliance MPs and 12 from the PLP.

Lawyer Tim Marshall

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Published July 12, 2016 at 9:00 am (Updated July 12, 2016 at 7:40 am)

Same-sex marriage case could still be won

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